Wills - Intestacy, Family Provision and Post-death Variations Flashcards
Intestacy
In what three situations do the intestacy rules operate?
- There is no will.
- There is an invalid will, or a valid will which fails to dipose of any of the estate (total intestacy)
- There is a valid will which fails to dispose of all of the property (partial intestacy)
Can the rules of intestacy be disapplied?
Can the rules be displaced?
No.
Only in limited circumstances, such as by an order made under the Inheritance (Provision for Family and Dependants) Act 1975.
Intestacy - Distribution where there is a surviving spouse and issue
(1) What is the meaning of issue?
(2) Are adopted children included?
(3) Are children of parents who were not married at the time of birth included?
(4) Are stepchildren included?
(1) All direct descendants of deceased.
(2) Yes.
(3) Yes.
(4) No.
Intestacy - Distribution where there is a surviving spouse and issue
The distribution is as follows:
Entitlement
a. Spouse/civil partner receives:
- the personal chattels
- a statutory legacy of £270,000
- half of the remaining residuary estate.
b. The other half of the residuary is held for the issue on the statutory trusts.
Intestacy: Illegitimate children
If a person dies intestate, and his parents were not married, what is the presumption?
When does this presumption not apply?
That the individual has not been survived by their father or anyone related to the father unless the contrary is shown.
Does not apply where father is named on child’s birth certificate.
This is to avoid PRs needing to enquire about the identity of an unknown father.
Intestacy - Distribution where there is a surviving spouse and issue
Personal chattels is tangible moveable property other than property which (3 types)
- consists of money
- was used as business purposes at time of deceased’s death.
- was held solely as an investment at time of deceased’s death.
Intestacy - Distribution where there is a surviving spouse and issue
The entitlement of the surviving spouse is subject to the spouse…
…surviving the deceased for 28 days.
If not, the estate is distrubuted as if the spouse has not survived the intestate.
Intestacy - Distribution where there is a surviving spouse and issue
If spouses held their family home as beneficial joint tenants, the interest in the property passes to the surviving spouse by survivorship (outside of intestacy rules). If it is held as tenancy in common, or in intestate’s sole name, the intestate’s share passes under intestacy.
(1) Suppose the surviving spouse has an entitlement under the intestacy rules amounting to £500,000, and the residuary estate includes a family home worth £300,000, what can the surviving spouse do?
(2) What if her entitlement is £300,000 and the house is £500,000?
(3) What are the requirements of the surviving spouse to exercise this right? (2 conditions)
(1) The surviving spouse can require the PRs to appropriate the family home in part satisfaction of her entitlement.
(2) The surviving spouse can still require appropriation, provided they pay the difference to the estate.
(3)
- Living in the property
- Formally elects to exercise the right and notify the PRs in writing within 12 months of grant of representation.
Intestacy - Distribution where there is a surviving spouse and issue
The issue’s entitlement is applied “on the statutory trusts”, which determines the membership of the class of beneficiaries.
(a) Who are the primary beneficiaries?
(b) What are the interests of the children are contingent upon?
(c) What happens if a child of the intestate predeceases the intestate and leave issue? What is this known as?
(d) What generally happens if a child or issue survives the intestate but dies without attaining a vested interest? (i.e. they have a contingent interest, but die before the age of 18, unmarried). Does the same happen if they leave issue?
(a) The intestate’s children living at the time of death.
(b) Attaining age of 18 or marrying under that age.
(c) The children of the deceased child take the deceased’s share equally between them, contingently upon attaining 18 or marriage under that age. Per stirpes distribution.
(d) Generally, their interest would fail and the estate is distributed as if they never existed. However, if they left issue, that child would substitute their deceased parent’s interest, provided that they were living at the time of the deceased’s death.
Intestacy - Introduction
Intestacy imposes a… which provides that the PRs must:
PRs have the power of … allowing them to…
…trust over all the property.
PRs must:
(1) pay funeral, testamentary and administration expenses
(2) debts of the deceased
Power of sale, allowing them to sell assets from the estate to raise cash for debts and expenses.
They also have the power to appropriate assets to satisfaction of a beneficiary’s share, wit the beneficiary’s consent.
Intestacy - Distribution where there is a surviving spouse and issue
(1) Spouse means:
(2) A former spouse is excluded, only from the point when:
(3) A couple had a marriage but the wife was underage. Was there a marriage?
(4) A couple had a marriage but one was under duress when entering into marriage. Was there a marriage?
(5) Do cohabitants have entitlement under intestacy?
(1) Person the deceased was married to at the time of death.
(2) Divorce was actually finalised, and marriage legally at an end.
(3) No. Void.
(4) Yes. Voidable until court grants a nullity decree.
(5) No.
Civil partnerships are treated in exactly same way as marriage.
Intestacy - Distribution where there is a surviving spouse but no issue
Apart from the spouse, would other relatives have any entitlements?
No.
Inheritance (Provision for Family and Dependants) Act 1975
The applicant was a widower who went to live with Mrs Iliffe for the last eight years of her life. Mrs Iliffe gave the applicant rent-free accommodation, cooked and washed for him. The applicant did the garden and household jobs. They pooled their pensions to pay the bills.
Under what ground of the Act did the applicant successfully apply?
Would a temporary break in maintenance have prevented a claim?
When would the claim be prevented?
(e) Person who immediately before death was being maintained by the deceased.
No.
If it were a commercial/contractual agreement.
This provision is designed to catch anyone who did not fall into the categories above, but can establish financial dependency.
Inheritance (Provision for Family and Dependants) Act 1975
This Act allows certain categories of people who may be aggrieved because…. to apply to the court for a benefit from the estate.
When else might this Act be used?
…they have been left out of the will or are not inheriting on intestacy.
When a person received some benefit from the will or intestacy but is dissatisfied with the amount.
Inheritance (Provision for Family and Dependants) Act 1975
The following persons can make a claim:
Categories of applicant
(a) Spouse
(b) former spouse who has not remarried.
(c) child of deceased
(d) any person treated by the deceased as child of the family.
(e) any person who, immediately before death of deceased, was being maintained by the deceased.
(f) any person who, during the whole of the 2 year period before death was living: (i) in same household as deceased; and (ii) effectively as a spouse.